Share this page

Findings and recommendations on merit review 003/18

Findings on Review

The following are findings made by the State Insurance Regulatory Authority (the Authority) on review and are to be the basis for the Insurer’s review decision.

The worker had current work capacity from March 2014 to April 2016.

The worker had no current work capacity from April 2016 to February 2017.

Recommendations Based on Findings

The following recommendations made by the Authority are binding on the Insurer and must be given effect to by the Insurer in accordance with section 44BB(3)(g) of the Workers Compensation Act 1987 (the 1987 Act).

The worker is not entitled to weekly payments of compensation from March 2014 to April 2016 in accordance with section 38(1) of the 1987 Act.

The worker is entitled to weekly payments of compensation under section 38(6) of the 1987 Act from April 2016 to February 2017 to be calculated by the Insurer.

Background

The worker sustained an injury to their lower back in 2010 in the course of their employment as a Process Worker/Labourer with the pre-injury employer.

The worker underwent surgery in early 2011 and further surgery in early 2013. The worker has not worked since their injury.

The worker has been in receipt of weekly payments of compensation from the Insurer.

In November 2013, the Insurer made a number of work capacity decisions resulting in the cessation of the worker’s entitlement to weekly payments of compensation under section 38(3) of the 1987 Act. The Insurer found that:

The worker had the capacity to work 20 hours per week within assessed physical capabilities

That the roles of Packer, Machine Operator, Light Assembler/Process Worker, Service Station Console Operator, Leaflet/Brochure Delivery Person and Sandwich/Kitchen Hand constituted suitable employment for the worker

The worker had current work capacity and did not meet the special requirements under section 38(3) of the 1987 Act for ongoing entitlement to weekly payments of compensation.

In January 2017, the worker applied for an internal review of the Insurer’s work capacity decisions. The Insurer conducted an internal review in February 2017 and determined that the worker had no current work capacity and therefore entitled to weekly payments of compensation under section 38(6) of the 1987 Act. The Insurer made this decision on the basis that there was no medical information from the last three months. The worker was notified of these decisions by letter and in the approved form of the same date.

The worker made an application for merit review by the Authority. The application was received by the Authority in March 2017. The application has been made within 30 days after the worker received notice of the internal review, as required under section 44BB(3)(a) of the 1987 Act. The application has been lodged in the form approved by the Authority.

Legislation

The legislative framework governing work capacity decisions and reviews is contained in the:

Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer by the Authority.

Documents Considered

The documents I have considered in this review are those listed in, and attached to, the application for merit review, the Insurer ’s reply and any further information provided by the parties.

I am satisfied that both parties have had the opportunity to respond to the other party’s submissions and that the information provided has been exchanged between the parties.

Submissions

The worker’s legal representative makes the following submissions on their behalf:

The worker is only seeking a review of the period March 2014 to February 2017.

During this period, the worker suffered from pain and restricted movement in their back with radiation to the right leg and right heel and is likely to require a lumbar fusion procedure. The worker is also suffering from anxiety and depression due to their injuries.

Since the accident, the worker has not returned to work.

The worker has been recommended a spinal fusion and is undergoing investigations to determine whether same is required.

The worker provided a current certificate of capacity stating they had no capacity. Given there was no other current medical information to dispute this certificate, the Insurer made a decision that the worker had “no current capacity”.

There are no current rehabilitation documents on the worker’s file.

The worker was not in receipt of weekly benefits immediately prior to 1 October 2012 and therefore the transition rate was applied as their pre-injury average weekly earnings.

Nature of merit review

This matter involves a merit review of the work capacity decision of the Insurer in accordance with section 44BB(1)(b) of the 1987 Act.

The review is not a review of the Insurer ’s procedures in making the work capacity decision and / or internal review decision. The review requires that I consider all of the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.

Reasons

The worker sustained an injury to their lower back while working as a Process Worker/Labourer with the pre-injury employer. The worker was carrying heavy rolls of steel, approximately 60kg in weight, when they experienced a sudden pain in their lower back followed by sciatica on the right side.

Subsequent medical examinations, including MRI, revealed an L4/5 disc protrusion. Surgery, in the form of an L4/5 discectomy was performed in January 2011. The worker’s symptoms did not improve and further surgery was recommended and carried out in March 2013. Postoperatively, the worker was treated with physiotherapy and hydrotherapy.

With the exception of an attempt to return to work in a light process work role in approximately late 2015, which the worker was unable to continue after 2 or 3 weeks, the worker has not returned to work since the injury.

In the application for merit review, the worker has sought a review of their capacity for work for the period March 2014 to February 2017. This period is in line with the cessation of the worker’s weekly payments of compensation after a notice period provided following the work capacity decisions of November 2013, to the Insurer’s internal review of February 2017 which recommenced the worker’s weekly payments of compensation.

The Authority has jurisdiction to review the work capacity decisions the Insurer made in November 2013 and the weeks of weekly payments of compensation impacted by those decisions.

In order to review the worker’s entitlement to weekly payments of compensation in those weeks, I am required to determine whether the worker had current work capacity or no current work capacity in those weeks.

Section 32A of the 1987 Act defines ‘current work capacity’ and ‘no current work capacity’ as:

Current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.No current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.

The above definitions require me to consider the worker’s capacity for work and whether the worker was able to return to work in their pre-injury employment and in suitable employment in the weeks affected by the Insurer ’s work capacity decisions.

The Insurer ’s decision that the worker has a present inability arising from an injury such that they are unable to return to work in their pre-injury employment is not a matter that is in dispute.

The worker’s capacity for work and ability to return to work in suitable employment are the matters in dispute between the parties. After considering the information before me, I have assessed the worker’s capacity and ability to return to work in the two distinct periods below separately.

The workers' entitlement from March 2014 to April 2016

The Insurer’s work capacity decisions were made in March 2014 and resulted in the worker’s weekly payments of compensation ceasing in or about March 2014 following a period of notice provided in accordance with section 54 of the 1987 Act.

The worker’s weekly payments ceased on the basis of the Insurer’s work capacity decisions that the worker had capacity to work 20 hours per week within physical capabilities [a decision about ‘current work capacity’ under section 43(1)(a) of the 1987 Act] and the worker had the ability to return to work in suitable employment [decision about ‘suitable employment’ under section 43(1)(b) of the 1987 Act]. The worker was therefore assessed as having ‘current work capacity’ in accordance with the above definition under section 32A of the 1987 Act and not meeting the special requirements under section 38(3) of the 1987 Act for ongoing weekly payments of compensation. Below, I will review each of the above decisions separately.

Current work capacity

In its work capacity decisions, the Insurer relied on WorkCover certificates of capacity issued by the worker’s treating doctor. The Insurer found that the worker had capacity for work in accordance with a certificate dated October 2013. The terms of the certificate were outlined as “modified duties of 20 hours a week” within the following capabilities:

Lifting up to 10kg

Change sitting position every hour

When standing – 5 minutes rest break every 30 minutes

Pushing/pulling up to 10kg

Bending/twisting/squatting is not advised

Driving tolerance of 30 minutes with 5 minutes rest.

Prior to the Insurer’s work capacity decisions, the worker had undergone a functional capacity assessment with an occupational therapist in July 2013. The occupational therapist outlined their findings in a functional capacity evaluation report dated August 2013. They assessed the worker with the capacity to work 8 hours per day, 5 days per week however recommended a gradual increase in hours and duties due to the length of time the worker had been out of the workforce. The occupational therapist assessed the worker’s physical capabilities as follows:

Lifting (waist height) up to 12.8kg

Bilateral carry up to 7.3kg

Unlimited capacity for sitting, reaching forward and walking

Limited capacity for standing, reaching overhead and squatting.

In their report, the occupational therapist also referred to a vocational assessment prepared by the occupational rehabilitation provider dated July 2013 and opined that the worker had the capacity to perform the roles of Packer, Light Assembler/Process Worker, Service Station Attendant and Sandwich/Kitchen Hand.

The other medical information before me, that is dated prior to the Insurer’s work capacity decisions, is a facsimile response from the treating doctor to the occupational rehabilitation provider dated October 2013. The occupational rehabilitation provider sought the treating doctor’s opinion in respect to the suitability of a number of roles. The treating doctor indicated that each of the identified roles of Packer, Machine Operator, Light Assembler/Process Worker, Service Station Console Operator, Sandwich/Kitchen Hand and Leaflet/Brochure Delivery were suitable for the worker.

Considering the above information, I am satisfied the worker had capacity to work 20 hours of modified duties in line with the physical capabilities outlined in the treating doctor’s certificate of capacity, above. This is because that certificate is generally consistent with the other information at that time about the worker’s physical capacity, being the occupational therapist’s functional assessment, which recommended gradually increasing hours of work to full-time and similar physical capabilities.

Suitable employment

‘Suitable employment’ is defined in section 32A of the 1987 Act as:

employment in work for which the worker is currently suited:

having regard to:

the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

the worker’s age, education, skills and work experience, and

any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

such other matters as the WorkCover Guidelines may specify, and (b) regardless of:

whether the work or the employment is available, and

whether the work or the employment is of a type or nature that is generally available in the employment market, and

the nature of the worker’s pre-injury employment, and (iv) the worker’s place of residence.

In its work capacity decisions the Insurer determined that the worker was able to return to work in the suitable employment options of Packer, Machine Operator, Light Assembler/Process Worker, Service Station Console Operator, Leaflet/Brochure Delivery Driver and Sandwich/Kitchen Hand.

The Insurer relied on a vocational assessment report prepared by the occupational rehabilitation provider dated July 2013 which identified the roles of Packer (Light), Assembler (Light), Service Station Attendant and Sandwich/Kitchen Hand as suitable return to work options for the worker.

The descriptions provided in the vocational assessment report in relation to each of the above roles do not address the functional requirements of the roles. The report provides information in relation to three employers contacted in respect to each role however the suitability of the role having regard to the worker’s physical capabilities (treating doctor’s certificate dated October 2013) do not appear to have been discussed. In the rare instance that it is addressed, only some of the physical capabilities are referred to i.e. lifting capabilities. It is therefore difficult to assess whether the roles identified are suited to the worker having regard to the nature of their incapacity.

I do note however that both the occupational therapist and the treating doctor, opined that a number of the roles identified were suitable for the worker in the above noted documents dated July 2013 and October 2013 respectively.

Considering the information that was available to the Insurer at the time of the work capacity decisions of November 2013, I am satisfied that there was employment suited to the nature of the worker’s incapacity at that time.

The vocational assessment report prepared by the occupational rehabilitation provider notes that the roles identified predominately do not require any qualifications and training. The report identifies a number of the worker’s transferrable skills gained from previous roles including their pre-injury role as a Process Worker/Labourer and finds that “The worker can use their existing transferrable skills to secure paid employment in all vocations identified”.

The occupational rehabilitation provider notes that the worker would benefit from English language training and a computer course “to increase their chance of employment”. I note that the worker was assisted by an interpreter for the vocational assessment. It is noted in the report that while the worker preferred the use of the interpreter, they were able to converse in basic English. I acknowledge that the worker may not have the English language skills to undertake some duties associated with a number of the above roles. However, I am satisfied that the worker has adequate language skills to work in the roles which require less communication and customer service i.e. Packer and Process Worker.

Having regard to the balance of the factors under section 32A of the 1987 Act, I am satisfied that the worker was able to return to work in suitable employment from March 2014 to April 2016. The worker therefore had ‘current work capacity’ in this period in accordance with the definition in section 32A of the 1987 Act.

Existing recipient of weekly payments

An “existing recipient of weekly payments” is defined in clause 1, Part 19H, Schedule 6 of the 1987 Act as:

Existing recipient of weekly payments means an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments.

The Insurer has confirmed in their reply to the application for merit review, dated March 2017, that the worker was in receipt of weekly payments of compensation immediately before 1 October 2012. On this basis, I am satisfied that the worker was in receipt of weekly payments immediately before the commencement of the weekly payments amendments and that they are an existing recipient of weekly payments. The weekly payments amendments as provided in Division 2, Part 19H, Schedule 6 of the 1987 Act therefore apply to the worker’s entitlement to weekly payments of compensation.

Entitlement periods for ongoing weekly payments

The worker’ ongoing entitlement to weekly payments is to be determined in accordance with the relevant entitlement period that is applicable at the time of review. The following provisions of the 1987 Act provide the basis for determination and calculation of a worker’s weekly payments entitlement:

Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”)

Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and

Weekly payments after the second entitlement period (after week 130) are to be determined in accordance with subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met in accordance with section 38 of the 1987 Act (“the post second entitlement period”).

The Insurer indicates in their reply that the worker had been in receipt of 173 weeks of weekly payments of compensation. I am satisfied that the worker’s entitlement to weekly payments of compensation in the period March 2014 to April 2016 fell after the second entitlement period and is to be determined in accordance with section 38 of the 1987 Act.

Special requirements for continuation of weekly payments after second entitlement period (after week 130)

A worker with ‘current work capacity’ is entitled to weekly payments of compensation after the second entitlement period if special requirements are met as follows:

A worker (other than a worker with high needs) who is assessed by the Insurer as having current work capacity is entitled to compensation after the second entitlement period only if:

the worker has applied to the Insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and

the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and

the worker is assessed by the Insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.

A worker with high needs who is assessed by the Insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the Insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.

Either section 38(3) or section 38(3A) of the 1987 Act apply depending on whether the worker is a ‘worker with high needs’. The Insurer determined both in its work capacity decision and internal review that the worker is a worker other than a ‘worker with high needs’ within the definition under section 32A of the 1987 Act. The information before me does not indicate that the worker’s degree of whole person impairment is 20% or more or that they meet any of the other requirements to satisfy the definition of ‘worker with high needs’ under section 32A of the 1987 Act. On the information before me, I am satisfied that the worker is a worker other than a ‘worker with high needs’.

I am satisfied that section 38(3) of the 1987 Act therefore applies in the worker’s case.

Section 38(3)(b) of the 1987 Act requires a worker (other than a worker with high needs) to have returned to work for not less than 15 hours per week and earn at least $150.00 (currently indexed higher) per week in order to satisfy the special requirements under this section. The worker was not working in the period March 2014 to April 2016. The worker therefore did not satisfy the special requirement under this subsection.

I find that the worker did not satisfy the section 38(3) special requirements for continuation of weekly payments of compensation in the period March 2014 to April 2016.

The worker is not entitled to weekly payments of compensation in the period March 2014 to April 2016. As this is ultimately the same outcome as the Insurer’s work capacity decisions, no recommendation to the Insurer is required for this period.

The workers' entitlement from April 2016 to February 2017

Current work capacity

The treating doctor continued to review and issue the worker with WorkCover NSW certificates of capacity following the Insurer ’s work capacity decision of November 2013. The treating doctor increased the worker’s certified capacity to 25 hours per week in January 2014 and then reduced it to 16 hours per week in February 2014. This latter certification continued until December 2015 when the treating doctor issued a certificate stating that the worker had no capacity for work and backdated this certification to May 2014. The treating doctor did not indicate the reason for the change in capacity on this certificate. In a subsequent certificate dated February 2016, the treating doctor noted: “Has not been paid by wc [WorkCover] from xx/5/2015 to xx/12/2015, so covered by certificate today”. The treating doctor continued to certify the worker with no capacity for work on the subsequent certificates to date.

There is a referral from the treating doctor before me dated December 2015 to an orthopaedic surgeon. The treating doctor reports:

Thank you for seeing the worker, 36 yrs, whom I consulted today. Please r/v followup and advise regarding pain in lower back getting worse with pain and numbness radiating to ulnar side of right foot (sic).

I do not have any reports from the treating orthopaedic surgeon before me.

The next medical information before me is a functional assessment report dated April 2016. The assessment was undertaken by an occupational therapist of another occupational rehabilitation provider. The occupational therapist does not specifically address how many hours of work the worker could undertake. They assessed that the worker “…would be suitable for a sedentary role” and assessed their physical capabilities as follows:

Avoid standing for periods over 5 minutes

Avoid walking for distances over 100 metres

Avoid bending

Avoid squatting

Avoid bilateral waist to waist lifting over 5kg

Avoid lifting with the right upper limb over 2kg and the left upper limb over 4kg

Avoid lifting over 2kg to shoulder height.

In July 2016, the worker was examined by a WorkCover trained assessor of permanent impairment. The assessor refers to “the latest report” from the treating orthopaedic surgeon dated July 2014 and notes that the worker had complained of worsening symptoms in their right buttock and thigh down to the shin and diffuse numbness in both legs. The treating orthopaedic surgeon reportedly advised the worker to consider fusion surgery however the worker preferred to avoid the procedure.

The assessor notes that the worker had not returned to work with the exception of a 2 or 3 week role doing light process work, handling small computer parts. The worker reportedly could not continue in that occupation as it required lengthy periods of standing.

At the time of the assessor’s report, the worker reported continuing to experience fairly constant low back pain and stiffness. The worker could not sit, stand or walk for more than 20 to 30 minutes. The assessor reports that the worker has “significant residual disability with chronic low back pain, stiffness, objective radiculopathy in the right lower limb and somatic symptoms referred to the left leg”. The assessor states that the treating orthopaedic surgeon had “reasonably suggested” that the worker would benefit from the fusion procedure.

The assessor assessed the worker as having reached maximum medical improvement and at whole person impairment level of 19%.

Specifically, in respect to capacity for work, the assessor reported:

The worker is going to be permanently unfit for repetitive bending, heavy lifting, carrying, twisting, pushing, and dragging. The worker should avoid prolonged periods of sitting or standing. The worker is permanently unfit for their pre-accident employment as a machine operator and general hand. The worker could not return to labouring type work now or in the future. The worker can only tolerate limited periods of standing, so they were unable to persist with even light process work that required prolonged standing. The worker could only perform semi sedentary duties on a part time basis with the above restrictions. Maximal work effort would be in the range of 20 hours weekly. In practice, and on the open labour market, they are unlikely to achieve gainful employment now or in the future.

The only other medical information before me are two reports from an orthopaedic specialist, dated May 2016 and November 2016. The orthopaedic specialist reports in the earlier report that the worker’s improvement seems to have stalled. They report that the operations had reduced the worker’s pain but the pain had not gone away. The worker was troubled by continual pain in the lower back which radiated through the whole of the right lower limb to the foot. The worker had pins and needles and numbness through the right lower limb.

In respect to capacity for work, they state:

The worker would be fit for work of a light nature, working 4 hours per day in a light duties environment whereby they can sit, stand, move around as needs demand and avoid lifting anything more than 5kg and avoid working in awkward or confined spaces.

The worker should be able to handle some light store or office work with those provisos. Their poor command of English will be a barrier to returning to the workforce.

It appears the orthopaedic specialist was asked to comment on the employment options that had been identified for the worker. They respond:

The worker ought to be able to handle some light storeman picking and packing work, 4 hours per day.

The worker might be able to do some light machine operating if they could sit, stand and move around as needs demanded.

The worker could also do some light assemble/process work and work as a service station console operator for a similar period of time.

Leaflet/brochure delivery might be difficult because of their difficulty walking any distance.

The worker could probably handle work as a sandwich/kitchen hand provided they were afforded the privilege to sit, stand and move around as needs demanded and work with the aforementioned limitations.

In the latest report, dated November 2016, the orthopaedic specialist states that “The worker does not appear to be travelling too well and recommends that the worker is reviewed by the treating orthopaedic surgeon again and an updated MRI is performed. They note that the worker was looking into undergoing pain management.

The orthopaedic specialist outlines the findings of the assessor (paragraph 66) and states that it seems like a: “…fairly reasonable assessment about the findings (sic)”.

The orthopaedic specialist notes that there is clearly evidence of “non-organic and exaggeration” in the worker’s presentation “…but one could not deny that they do appear to have some genuine pathology in the lower back and now right upper limb”. They state that the worker’s prognosis is “poor”.

Addressing capacity for work again in this report, the orthopaedic specialist opines:

The worker is only suited to work of a light semi-sedentary nature working four hours a day, avoiding excessive bending and lifting or working in awkward or confined spaces. The worker should look for work whereby they could sit and stand as the needs demands. The worker is really probably more suited to work of a semi-sedentary nature in an office or store place environment with the aforementioned provisos. Given their limited English language skills and their limited transferrable skills, an earlier return to the workforce would seem unlikely.

When considering the medical information since the Insurer ’s work capacity decision, the treating doctor’s certificates of capacity, stating that the worker has no capacity for work, appear to be inconsistent to the remainder of the information before me which indicate that the worker has the capacity to work part-time. The treating doctor’s certificate back dating 1.5 years is also inconsistent to the certificates they issued themselves during that period. Further, the explanation provided in the certificate dated February 2016 indicates that the certification of no capacity for work was influenced by the worker’s weekly payments ceasing. For these reasons, I attribute little weight to the treating doctor’s certificates which state that the worker has no capacity for work.

The occupational therapist does not give a specific opinion in respect to hours of work however both the assessor and the orthopaedic specialist assess 20 hours per week. The opinions of the occupational therapist, the assessor and the orthopaedic specialist are relatively consistent with respect to the worker’s physical capabilities.

The worker’s capacity for work, in terms of hours of work, therefore has not changed since the work capacity decisions, remaining at 20 hours per week. The above opinions indicate that the worker’s physical capabilities have however changed, in terms of reduced tolerances. This has been attributed to a worsening of the worker’s condition/symptoms. The first indication of these reduced tolerances was the functional assessment of April 2016. The subsequent assessments of the assessor and the orthopaedic specialist are relatively consistent but not as specific.

For the above reasons, I am satisfied that from April 2016 to February 2017, the worker has had the capacity to work 20 hours per week within the physical capabilities assessed by the occupational therapist, outlined above (paragraph 61).

Suitable employment

As noted above, the Insurer determined in its work capacity decisions that the worker was able to return to work in the suitable employment options of Packer, Machine Operator, Light Assembler/Process Worker, Service Station Console Operator, Leaflet/Brochure Delivery Driver and Sandwich/Kitchen Hand.

In their functional assessment of April 2016, the occupational therapist outlines the specific functional demands required to undertake the duties involved in the roles of Picker Packer, Machine Operator/Process Worker, Light Assembler, Pamphlet Deliverer and Kitchen Hand. When they compared the demands of the role to the worker’s physical capabilities, as assessed (paragraph 60), they found that the worker did not have the capacity to undertake the majority of the tasks involved in those roles. The occupational therapist assessed that the worker did not have the capacity to undertake those roles on a full-time or part-time basis.

Upon review of the functional assessment report, it appears that while the worker may have had the capacity to undertake the above roles from March 2014 to April 2016, they have been unable to undertake these roles from April 2016 in light of the reduced tolerances assessed by the occupational therapist at that time (paragraph 61).

Specifically, the role of Machine Operator reportedly requires lifting up to 10kg, “constant” standing and “occasional” squatting. The role of Light Assembler requires lifting up to 10kg, “constant standing”, “frequent” walking and “occasional” squatting. The role of Pick packer requires lifting up to 20kg, “constant” standing and “frequent” walking. The role of Pamphlet Deliverer requires “constant” standing and “frequent” walking.

I note that the orthopaedic specialist opined that the worker may be able to undertake “some” of the duties of the above roles in their report dated May 2016 however they were quite general in their opinion and also gave their opinion on the basis that the roles were within a number of the worker’s physical capabilities. It is also not clear whether the orthopaedic specialist reviewed the occupational therapist’s report and the functional demands of the roles before giving their opinion.

Having regard to the information currently before me, I do not consider the roles of Picker Packer, Machine Operator/Process Worker, Light Assembler, Pamphlet Deliverer and Kitchen Hand to be suited to the nature of the worker’s incapacity from April 2016 to February 2017.

The occupational rehabilitation provider undertook a vocational assessment with the worker. The earning capacity assessment report dated March 2016 referred to the above roles and noted that the worker’s functional capacities had deteriorated since 2013 and the worker no longer had the capacity to undertake the above roles. In this report, they also assessed the remaining role of Service Station Console Operator, identified as suitable employment in theInsurer ’s work capacity decisions. They stated:

Due to the worker’s limited English language skills, it was considered the option of Service Station Attendant, as previously identified, would not be appropriate, as a good level of English is required for customer service duties, as per labour market research review of vacancies.

They note that the worker relied heavily on the interpreter in the vocational assessment. Although they note that this was inconsistent with information from a previous report from another provider where the worker was observed to be able to communicate “relatively well in English without the aid of an interpreter”, they still find the role unsuitable. I note that the worker was assisted by an interpreter for all the medical reviews referred to above as well as the vocational assessments before me.

Based on the information before me, I am not satisfied that the worker’s English skills are to the level required to undertake the customer service duties of a Service Station Console Operator.

The worker had a present inability arising from an injury such that they were not able to return to work, either in their pre-injury employment or in suitable employment from April 2016 to February 2017. I find that the worker had ‘no current work capacity’ in that period, in accordance with the definition under section 32A of the 1987 Act.

Entitlement periods for ongoing weekly payments

The worker’s ongoing entitlement to weekly payments is to be determined in accordance with the relevant entitlement period that is applicable at the time of review. The following provisions of the 1987 Act provide the basis for determination and calculation of a worker’s weekly payments entitlement:

Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”)

Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and

Weekly payments after the second entitlement period (after week 130) are to be determined in accordance with subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met in accordance with section 38 of the 1987 Act (“the post second entitlement period”).

The Insurer indicates in their reply that the worker had been in receipt of 173 weeks of weekly payments of compensation. I am satisfied that the worker’s entitlement to weekly payments of compensation in the period April 2016 to February 2017 fell after the second entitlement period and is to be determined in accordance with section 38 of the 1987 Act.

Special requirements for continuation of weekly payments after second entitlement period (after week 130)

Section 38 of the 1987 Act provides that an entitlement to weekly payments of compensation after the second entitlement period is only available to a worker with ‘no current work capacity’ if special requirements are met as follows:

A worker who is assessed by the Insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.

Noting the matters to which I have referred to in these reasons and the information currently before me, I find that the worker was likely to continue indefinitely to have no current work capacity from April 2016 to February 2017. That is, for the foreseeable future or until such time that there is adequate information to support that they are able to return to work in suitable employment.

I find that the worker satisfies the requirement under section 38(2) of the 1987 Act from April 2016 to February 2017. The worker is therefore entitled to continuation of weekly payments of compensation in that period in accordance with section 38(2) of the 1987 Act.

As the worker had no current work capacity during that period, their entitlement to weekly payments of compensation is to be calculated under section 38(6) of the 1987 Act. This section provides:

The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of: (AWE × 80%) – D

I find that the worker is entitled to weekly payments of compensation under section 38(6) of the 1987 Act from April 2016 to February 2017, to be calculated by the Insurer.

Merit ReviewerMerit Review ServiceDelegate of the State Insurance Regulatory Authority